Raitport v Con Edison Co. of NY

[*1] Raitport v Con Edison Co. of NY 2005 NY Slip Op 51797(U) [9 Misc 3d 1126(A)] Decided on November 3, 2005 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 3, 2005
Supreme Court, Kings County

Eli Raitport, Plaintiff,

against

Con Edison Company of NY, Defendants



37332/04

Francois A. Rivera, J.

By notice of motion dated June 21, 2005, plaintiff sought an order consolidating certain unspecified actions. Defendant did not submit opposition papers and did not appear for oral argument scheduled on July 15, 2005. On July 15, 2005, this court granted plaintiff's motion on default with a direction to settle an order on notice. In compliance with the direction, plaintiff submitted a proposed order.

As a general rule, the movant on a calendar call scheduled for oral argument will prevail on default by the failure of the opposing party to appear. Pursuant to New York State Uniform Court Rule §210.30(a), the court orders the movant to settle the order on notice. This procedure provides the movant and opponent the opportunity to frame the relief requested as supported by the original motion papers. In this case, the movant's proposed order and corresponding motion papers reveal fundamental deficiencies.

CPLR §2214(a) states: A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor.

CPLR §602(a) states:

When actions involving a common question of law or fact are pending before a

court, a court, upon motion, may order a joint trial or any or all the matters in

issue, may order the actions consolidated, and may make such other orders

concerning proceedings therein as may tend to avoid unnecessary costs or delay.

By order to show cause filed with the Kings County Clerk on November 12, 2004, plaintiff moved for an order canceling the debt owed defendant for electrical service, and for other relief in the instant action. On February 8, 2005, defendant canceled the debt owed by the plaintiff and the court ordered the dismissal of plaintiff's other matters as improperly and [*2]defectively plead. By motion filed March 11, 2005, plaintiff moved to reargue the dismissal of his underlying action. By decision issued November 1, 2005, plaintiff's application was denied.

Plaintiff's motion papers in the instant application fail to fundamentally support the relief requested contrary to CPLR §2214(a). In particular, plaintiff's motion failed to include index numbers specifying which matters plaintiff seeks to consolidate. Pursuant to CPLR §602, the plaintiff must, at the minimum, indicate what matters he seeks to consolidate and the common question of law or fact he is relying upon. Asking the court to consolidate all matters pending whether active or not, is legally insufficient and improperly leaves the court to speculate as to the basis of the relief sought. It is noted that the court is unaware of the existence of any other action or proceeding between the parties In as much as the court has dismissed the instant action on February 8, 2005, there is apparently no pending court actions to consolidate. There certainly is no evidence of any court actions pending which involve a common question of law or fact. Even if another action exists, by the dismissal of the instant action, the motion for consolidation would be rendered moot. The doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy (In the Matter of Citineighbors Coalition of Historic Carnegie Hill v New York Landmarks Preservation Commission et al, 2 NY3d 727 [2004]). As of February 8, 2005, there is no evidence of any action pending that would be subject to consolidation. Therefore, pursuant to CPLR §2214(a) and §602, plaintiff's motion for consolidation is denied..

The foregoing constitutes the decision and order of this court

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J.S.C.